Mr X. and The Department of Justice and Equality

Whether the Department was justified in refusing to release two submissions made to it in 2006 and 2009 by the National Lottery (the Company) during public consultations about possible ways of regulating the casino sector.

Review Application under the Freedom of Information Acts 1997 &amp; 2003 (the FOI Act) to the Information Commissioner.

Background

The Gambling Review
In 2006, the then Minister for Justice, Equality and Law Reform announced the establishment of an interdepartmental committee to examine ways of regulating casino-style operations in the State. A public advertisement invited submissions from interested parties and a report, called "Regulating Gaming in Ireland", subsequently issued.

In 2009, the Minister for Justice, Equality and Law Reform announced a "major review of gambling", intended to provide the Government with options for a "new and comprehensive legal and organisational framework" for gambling in the State. Submissions were sought, and contributors were directed to the Department's website for relevant details including "advice in relation to the Freedom of Information Acts." A report, called "Options for Regulating Gambling", was subsequently published.

Outline of FOI Process to Date

The applicant made a request to the Department on 24 June 2010 for copies of submissions made by five named organisations, including the Company, in the above consultation processes. The Department's decision of 17 August 2010 refused to release the relevant records, saying that they were exempt under sections 20, 26(1)(a), 26(1)(b), 27(1)(b) and 27(1)(c) of the FOI Act.

The applicant sought an internal review of this decision on 31 August 2010 but the Department upheld its decision. The applicant then sought a review by this Office of the Department's refusal of the records, which was received on 14 March 2011.

In carrying out my review, I have had regard to the correspondence between the Department and the applicant as detailed above; to details of various contacts between this Office and the Company, particularly the preliminary views letter sent to it by Ms Anne Lyons, Investigator, on 10 July 2012 and its reply dated 27 July 2012; and to details of various contacts between this Office and the Department. I have also had regard to copies of the records considered by the Department to be relevant to the request (which were provided to this Office for the purposes of the Commissioner's review).

Scope of the Review

In a letter to this Office dated 17 June 2011, the Department said that, following a further FOI request, the applicant had been given "possession of, or ... access to" the submissions specified in the 24 January 2010 request, apart from those made by the Company.

Ms Lyons thus explained to the applicant on 10 July 2012 that the scope of this review is limited to the consideration of whether or not the Department was justified in withholding the Company's two submissions. However, further to Ms Lyons' letter to the Company of the same date, the latter agreed to the release of certain aspects of the submissions (whilst maintaining that they were provided in confidence and on the understanding that they would be treated as such). It follows that only those details in the two records at issue, which the Company has not agreed may be released, are the subject of this decision.

It should be borne in mind that the release of a record under the FOI Act is akin to its release to the world at large. It is also important to note that section 43(3) of the FOI Act requires this Office to take all reasonable precautions to prevent disclosure of information which any party contends is contained in an exempted record, so as to preserve that party's right of appeal to the High Court. This may impact on the extent to which I can elaborate on my reasons for certain aspects of my decision.

Findings

Section 20
Section 20 provides that a head may refuse to grant a request for a record "if the record concerned contains matter relating to the deliberative processes of a public body (including ...the results of consultations, considered ... for the purposes of those processes)."

Arguments Made
In its decision of 17 August 2010, the Department stated that it was examining the 70 submissions received in 2009, in order to put various policy proposals to the Government, and that it considered them "to form part of the deliberative process". It said it was not in the public interest to release any of them before the Government had had an opportunity to arrive at its decision on the matter.

The Department's letter to this Office dated 17 June 2011 appeared to indicate that it was no longer relying on section 20 of the FOI Act, further to publication of the "Options ... " report. However, this position changed following the Department's receipt of a letter from the Company, dated 13 July 2011. That letter (which commented on views expressed by Mr Sean Garvey, formerly the Senior Investigator in this Office, to the Department in a letter dated 1 July 2011) stated that it agreed with the Department's previous reliance on section 20 ("clearly applies") given that the provision encompasses results of consultations considered by a public body. It argued that it was in the public interest for "full and open submissions" to be made and considered in confidence in cases such as this, particularly while the Department's review remained ongoing, and for such submissions to be withheld "at least pending the final outcome of the Department's deliberations regarding proposed any legislation in this area."

The Department's ensuing letter to this Office, dated 14 July 2011, stated that its "main concern is to ensure the public interest is served"; that the opinions submitted by the Company are "enormously helpful"; that their disclosure "would be likely to impact adversely on future engagement in policy debates and disclosure of strategic policy positions" by the Company and others; and that the records "should be withheld (section 20(1))."

In her letter to the Company dated 10 July 2012 (upon which she also invited comment from the Department), Ms Lyons said that while she accepted that section 20(1) was relevant to the records at issue, she felt that the public interest did not weigh in favour of withholding them, in that she saw no need to protect deliberative processes when those to which the submissions are directly relevant have concluded. The Company's response of 27 July 2012 did not comment specifically on section 20, but referred to the impact of the release of the records on the competitive process for the next National Lottery Licence, while the Department responded that its position remained the same as that outlined on 14 July 2011.

Consideration of Arguments
I concur with Ms Lyons' views that section 20(1) of the FOI Act is applicable to the records at issue. It is clear that, in both 2006 and 2009, submissions were sought further to public consultations regarding gaming legislation; that the submissions were deliberated on and as a result, two reports were compiled and published. Given that section 20(1) applies to "matter relating to the deliberative processes of a public body (including ...the results of consultations, considered ... for the purposes of those processes)", I am satisfied that section 20(1) of the FOI Act is relevant to the details at issue.

However, the public interest test at section 20(3) must be considered. In general terms, I accept that there is a public interest in ensuring that the Department had adequate time to consider the submissions made in 2006 and 2009 and to decide on what to recommend to the Minister. While further deliberations may be necessary regarding proposals in the "Regulating Gaming ... " and "Options ... " reports, or regarding any potential legislation, I do not see how they can be harmed by release of submissions that do not, by their very nature, contain views on these matters. Neither has it been explained to me how any public comment, arising from the release of the submissions, would prevent the Minister, or his public servants, from carrying out the next stage(s) of the deliberative process.

Furthermore, the Department has published many of the submissions received, some in full and others in part, having consulted with the parties who submitted them). It seems to me that if the Department had valid reasons about the release of the records at issue in this case vis a vis any ongoing deliberations, it would have been equally concerned about the impact of release of all other submissions received and would not have even considered placing any of them in the public domain, much less have consulted with the third parties. In fact, it seems that the Department's current reliance on section 20(1) was at the urging of the Company, which is not in my view an appropriate reason for any public body to invoke an exemption.

It is also argued that release of the records at issue will result in parties making submissions that would lack essential details, which would impact on the deliberative process. I consider it unlikely, however, that stakeholders whose interests might be affected by a particular policy or legislative proposal would decide not to take part in any related consultation process, or decide to exclude any opinions or information that would support their own position.

Finally, it has not been explained how the records at issue might be relevant to the competitive process (or related deliberations) for the next National Lottery Licence, or how those deliberations might be affected by the release of the records at issue.

Thus, it would appear to me that there is no true positive public interest to be served in withholding the particular records at issue in this case. On the other hand, there is clearly a positive public interest in ensuring general awareness as to how the Department arrived at the recommendations contained in the "Regulating Gaming ... " and "Options ... " reports. Accordingly, I find that the public interest weighs in favour of release of the records (although it is important to note that any truly confidential or commercially sensitive information would still be open to exemption under section 26 or 27 of the FOI Act). Under the circumstances, there is no need for me to consider the exceptions to section 20(1), as contained in section 20(2) of the FOI Act.

Section 26
Section 26(1)(a) provides that a head shall refuse to grant a request for a record in the following conditions:

that the record at issue contains "information given to a public body in confidence and on the understanding that it would be treated by it as confidential ..."; and,

"in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons"; and

"it is of importance to the body that such further information as aforesaid should continue to be given to the body ...".

Section 26(1)(b) provides that a that a head shall refuse to grant a request for a record if "disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment ... or otherwise by law."

Section 26(3) provides that, subject to consultation further to section 29 of the FOI Act, section 26(1)(a) "shall not apply in relation to a case in which, in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the request ...".

Arguments Made
The Department's decision did not explain why it considered the records to meet the various tests required to be met for section 26(1)(a) or (b) to apply to the records at issue. While the internal review application contended that a consultation process such as this should be carried out "in an open manner", the Department's internal review decision reiterated arguments, already dealt with under section 20, regarding the need for frank submissions.

In the course of this Office's review, the Company argued that the submissions contained its "private and confidential views ... on the nature of regulation appropriate to [its] activities and on the potential impact of casinos on its public interest functions" as well as "confidential plans for the future development of the [Company's] business" (while the Company subsequently outlined why it considered the details of its plans to remain both confidential and commercially sensitive, and why it would be inappropriate for its competitors to have those details, section 43(3) of the FOI Act precludes me from repeating these comments). It said it was "clear that the above private and confidential Submissions were provided to the Department in confidence and on the understanding that they would be treated as confidential."

The Company also said that the "importance of detailed submissions" being "facilitated on a confidential basis" was acknowledged by the Department's website, and that the "well established norms of consultation processes, and the ongoing practice adopted by the Department, can leave no doubt that the [Company] had a legitimate expectation that the Department was fully aware that the Submissions were provided to it for a restricted and limited purpose and on the understanding that they would be treated as confidential."

It argued that both section 26(1)(a) and (b) of the FOI Act applied and noted that the latter was not subject to the public interest test. Presumably regarding section 26(1)(a), the Company argued that disclosure of the details would not be in the public interest, due to its likely reluctance to take part in any similar processes involving the future regulation of gambling, and, presumably, the impact arising from this. The Department supported the Company's position as to the confidentiality of the consultation process "with particular emphasis on the confidentiality of matters of commercial sensitivity".

Ms Lyons' letter to the Company of 10 July 2012 (which, as noted, was also copied to the Department) said that no specific arguments had been made by either the Department or the Company as to why section 26(1)(b) of the FOI Act applies to the records at issue, in that their arguments appear to relate to section 26(1)(a) only.

She noted that the public advertisement for submissions in 2006, which she understood to have been placed in newspapers twice in August of that year, made no reference to the confidentiality or otherwise of the consultation process. As regards the 2009 consultation, she also noted that the details of "advice in relation to the Freedom of Information Acts" as contained on the Department's website stated that "[s]ubmissions may be subject to the provisions of the [FOI Act] and may be published. Please indicate if you would prefer your submission to remain confidential."

Ms Lyons said that she did not accept the Company's contentions as to why it considers the submissions to have been made in confidence. She noted no evidence of explicit assurances of confidentiality having been sought or given in either 2006 or 2009. She also noted that the Department's 2009 request for submissions had clearly put the onus on the submitting party to identify confidential information at the time of making the relevant submission. She said that she considered the Company to have had no reasonable basis for any implicit understanding of confidence because its ensuing submission did not refer to the confidentiality thereof. Ms Lyons said that she held the same view in respect of the Company's 2006 submission, which she noted did not seek to clarify the issue of confidentiality despite the Department's request for submissions having been silent in this regard and despite the FOI Act having been in operation since 1998. She said that her views were not altered by the fact that the Department appears to have subsequently contacted the Company to seek permission to place its submissions on its website. As noted already, the Department did not directly address any arguments made in Ms Lyons letter, while the Company's response reiterated its earlier position.

Consideration of Arguments
I agree with Ms Lyons' views that the two tests of this provision as set out at point 1. above have not been met. Essentially these tests are concerned with the circumstances in which the information was imparted, not the nature of the information itself.

The Department's 2006 request for submissions did not provide any assurances, explicit or implicit, regarding the confidentiality of that process. The Company's submission did not express itself to have been made in confidence (although this alone would not have been sufficient to require me to find that section 26(1)(a) applied) nor has the Company or the Department provided me with any evidence that assurances of confidentiality were sought or given at any point up to the making of the submission.

As regards the 2009 submission, it is clear that the Department contemplated the publication of the submissions (its statement that the submissions "may" be subject to the FOI Act was inappropriate, in that all such submissions would be subject to the provisions of the Act, even if found to be exempt thereunder). The onus to claim confidentiality was clearly on the parties making submissions (furthermore, the fact that they were asked to "indicate" if they "would prefer" their submission to "remain confidential" does not seem to me to equate to an undertaking that the Department would indefinitely keep a submission confidential merely because someone indicated a preference to that effect). The ensuing submission did not refer to confidentiality, nor do I have any evidence that assurances of confidentiality were sought or given at any point up to the making of that submission.

Neither do I consider the Company's assertion - some years after the event - that both submissions were "confidential" and made "in private", to be adequate evidence of any mutual understanding of confidentiality, regardless of the Department's supporting comments. Neither has the Company explained what are the "well established norms of consultation processes" referred to in its submissions, or what is the Department's stated "ongoing practice", and how these are at odds with either the observations set out above, or the fact that the Department has been subject to the FOI Act since 1998.

Having regard to the above, I am not satisfied that the Company could have had any expectation, legitimate or otherwise, that it was making the submissions in confidence or that they would be treated indefinitely by the Department as such. As will be clear from my comments on the application of section 20, neither do I accept the arguments made that release of the records at issue would be likely to prejudice the provision to the Department of further similar information by the Company or others. As the tests set out at points 1. and 2. above have not been met, I find that the records are not exempt under section 26(1)(a) of the FOI Act. Accordingly, there is no need for me to consider the public interest test.

Section 26(1)(b)
Neither party responded to Ms Lyons' view that their arguments did not appear relevant to this provision of the FOI Act. When considering whether an equitable duty of confidence exists, this Office applies what are commonly referred to as the Coco tests, i.e.

'Three elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself...must have the necessary quality of confidence about it. Secondly, that information must have been imparted in circumstances imposing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it.'"

It will be clear from my earlier comments that I do not consider the information in the submissions at issue to have been "imparted in circumstances imposing an obligation of confidence". For reasons set out below under section 27, I would also consider that there is insufficient argument to support the contention that release of the details at issue, at this point in time, would be "to the detriment of the party communicating it" i.e. the Company. Therefore, I do not consider section 26(1)(b) to apply and find accordingly.

Section 27
Section 27(1)(b) provides that a head "shall refuse to grant a request ... " for a record if it contains "financial, commercial, scientific, or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain go the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation.

Section 27(1)(c) provides that a head "shall refuse to grant a request ... " for a record if it contains "information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates."

Arguments Made
The Department's decision did not explain why it considered sections 27(1)(b) and (c) to apply to the records at issue, although its internal review decision stated that commercially sensitive information "is often an important means of illuminating the position taken by a commercial body". It repeated arguments regarding such information that have already been dealt with under section 20.

As noted earlier, the Company argued that the details included "confidential plans" for its future development, which should be seen as commercially sensitive, as should views it had expressed in the submissions. It also argued that disclosure may materially prejudice its position in the probable tender process for the award of the next National Lottery licence, as well as why the public interest weighed in favour of protecting such information. The Department supported the Company's position.

Ms Lyons' letter of 10 July 2012 explained to the Company why she did not consider that its commercial interests could be impacted upon by the release of the records. While neither the Department nor the Company sought to counter Ms Lyons' views, I am taking the Company's stated concerns, over release of the records in advance of the public competitive process for the award of the next National Lottery Licence, to refer to section 27 of the FOI Act.

Consideration of Arguments
The key requirements in applying section 27(1)(b) are that release of the details at issue "could reasonably be expected to" (i.e. not merely that release "might") lead to a "material financial loss or gain" (emphasis added) to the person to whom the information relates, or prejudice his or her competitive position in the conduct of his or her profession or business.

Firstly, the Company has argued why the details at issue retain commercial sensitivity today. For reasons I cannot divulge due to section 43(3), I do not accept that the release of details about the Company's plans or views "could reasonably be expected" to lead to any financial loss to the Company at this point in time, much less a material one. Equally, I have no reason to accept that release of the details could impact upon, much less prejudice, the Company's competitive position in the conduct of its business. I find, therefore, that section 27(1)(b) does not apply to the remaining details in the records at issue.

As for section 27(1)(c), neither the Department nor the Company have explained why they consider this provision to apply. Neither has explained how any negotiations in which the Company may currently be involved (or which might be reasonably foreseen) could be affected by the release of the details at issue. While the Company has expressed concerns about disclosure of the records on the Company's position in the public competitive process for the award of the next National Lottery Licence, I do not accept that such a competitive tender process could be classed as a negotiation for the purposes of section 27(1)(c) of the FOI Act. Furthermore, the Company has not explained how records arising from a public consultation could have any relevance to such a tender process, much less "prejudice" its conduct or outcome.

Accordingly, I find that section 27(1)(c) does not apply to the remaining details in the records at issue.

Given my findings on sections 27(1)(b) and (c), there is no need for me to consider the exceptions to section 27(1), as contained in section 27(2) of the FOI Act, or the public interest test at section 27(3). It should be noted, however, that release of the records at issue in this case does not necessarily set a precedent that must be followed in respect of any request for records relating to the competitive tender process for the award of the next National Lottery licence; each case is judged on its own merits, having regard to the nature and contents of the records at issue along with the circumstances applicable at the time of this Office's decision.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby annul the Department's refusal of the remaining details at issue and direct that they be released.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal